Tennessee Recreational Use Statute Strikes Again

In a recent premises liability case, a Tennessee statute shielded the property owner from liability for a four-wheeler accident that occurred on his property. In McCaig v. Whitmore, No. W2015-00646-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2016), plaintiff and his family were attending a social gathering at defendant’s home, which consisted of around seven acres of land and a house. Defendant had ATVs, and took rides with plaintiff’s wife and son, giving them instructions about how to drive safely and what areas to avoid. Plaintiff “neither asked for nor received the same detailed instructions from [defendant].” While riding and following his wife, who was driving another ATV, plaintiff’s ATV flipped and landed on top of him, causing severe injuries.

Plaintiff filed a negligence suit, alleging that defendant was “liable to them for negligence as a result of failing to properly instruct [plaintiff] on how to operate the ATV and by failing to warn [plaintiff] of dangerous and concealed conditions on his property that were known to [defendant].” Defendant filed a motion for summary judgment, arguing that the Tennessee Recreational Use Statute (TRUS), Tenn. Code Ann. § 70-7-101 et. seq., barred recovery by plaintiff. The trial court granted summary judgment, finding that pursuant to the TRUS, defendant owed no duty to plaintiff, and the Court of Appeals affirmed.

Tenn. Code Ann. § 70-7-102 states:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as…off-road vehicle riding…and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

The Tennessee Supreme Court has “outlined a two-pronged analysis to determine whether immunity can be granted under the recreational use statute. First, the court must determine whether the activity alleged is a recreational activity as defined by the statute.” If the court answers this first prong in the affirmative, “then the court must determine whether any of the statutory exceptions or limitations to the immunity defense are applicable.” (citing Parent v. State, 991 S.W.2d 240 (Tenn. 1999)).

Here, the Court first analyzed whether the TRUS applied. While the riding of ATVs clearly fell within “off-road vehicle riding,” plaintiff argued that the TRUS did not apply here “because they did not enter [defendant’s] property ‘for the purpose of engaging in recreational activities of any kind including off-road vehicle riding.’” Plaintiff argued that he should be treated as an invitee, and that the TRUS should not shield defendant from liability. The Court, however, rejected this argument, noting that the statute, by its language, applies to “entry OR use.” By using “or” instead of “and,” the statute “confer[s] immunity to the landowner against those who enter oruse his property for recreational use.” Entering with the intent to engage in recreational use is not a prerequisite to the application of this statute. Thus, the TRUS was applicable to this case.

Next, the Court addressed whether any exceptions to the TRUS applied here. Plaintiff first argued that the principal place of residence exception applied, which provides a TRUS exception to “the landowner’s principal place of residence and any improvements erected for recreational purposes that immediately surround such residence, including, but not limited to, swimming pools, tennis or badminton courts, barbecue or horse shoe pits, jacuzzis, hot tubs or saunas.” § 70-7-101(1)(C). Plaintiff asserted that because defendant had his home on his property, the entire seven-acre tract should be considered his “principal place of residence.”

Pointing out that the phrase “principal place of residence” “is not defined in the statute, nor has it been defined by Tennessee Courts in the context of the recreational use statute[,]” the Court first looked to Black’s Law Dictionary, which defines residence as the “place where one actually lives; a house or other fixed abode; a dwelling.” Next, the Court looked at the facts of this particular case, noting that plaintiff admitted that the accident did not occur in the “parking area” of the driveway, but farther from the house, “more out in the yard or the acreage area.” Ultimately, the Court determined that the “principal place of residence” exception did not apply here, reasoning:

Improvements erected for recreational purposes surrounding the residence are excluded from coverage under the statute. Applying the plain meaning of the terms, we do not conclude that a driveway is an “improvement erected for recreational purposes.” Although the list of improvements contained in the statute is not exclusive, a driveway on a seven acre tract of land is not in any way analogous to a swimming pool, a tennis or badminton court, barbecue or horse shoe pit, jacuzzi, hot tub or sauna.

Next, plaintiff argued that this case fell under the gross negligence exception to the TRUS. To show gross negligence, “a plaintiff must prove that the act was done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.” (internal citation and quotation omitted). In TRUS cases, the Court noted that gross negligence “has only been found in the most egregious cases,” such as the failure to even put a sign in a military area containing unexploded materials. In the present matter, the Court pointed out that plaintiff testified that he was following the same route his wife took riding an ATV in front of him, and that plaintiff did not know what caused his accident. Based on the record in this case, the Court concluded that there were “no facts from which a reasonable fact finder could conclude that [defendant] is guilty of gross negligence.”

Finally, plaintiff attempted to make an argument under the willful or wanton conduct exception. Because this argument was not brought up at the trial court level, though, it was waived on appeal.

Finding that the case fell under the TRUS and that no exception applied, the Court of Appeals ruled that defendant negated an essential element of plaintiff’s case, showing that he had no duty toward plaintiff. Summary judgment was accordingly affirmed.

This is an interesting case that shows how difficult the Tennessee Recreational Use Statute can be to get around, leaving a very injured plaintiff with no option for recourse. What is particularly noteworthy here is the analysis of the “principal place of residence” exception. The Court points out that the term has not yet been defined by Tennessee courts in the TRUS context, and even though it analyzes this case using the dictionary definition, it does not purport to adopt or establish a definition. It is safe to assume, then, that “principal place of residence” remains undefined. The Court here seemed to rely at least partially on the area of the driveway where the accident took place, noting that it was not on the parking area and was further from the house. It is unclear if the analysis would have been different had the accident occurred near the house…is proximity a crucial part of the analysis? Can driveways ever fall under this exception? It will be interesting to see if other cases come along to clarify this exception further, or if the Supreme Court decides to hear this case if appealed.